Opinion Information Sheet

			

 IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 RONALD and DEBORAH TETER,                      )
 husband and wife,                              )
                                                )                  No. 85342-8
                Petitioners,                    )
                                                )                    En Banc
        v.                                      )
                                                )
 ANDREW DECK, M.D.,                             )              Filed April 5, 2012
                                                )
                Respondent.

       WIGGINS, J.  --  Before excluding a witness as a sanction for discovery 

violations, the trial court must make findings that the violation was willful and

prejudicial  and  was  imposed only after explicitly considering less severe 

sanctions.  In this medical negligence case, a pretrial motions judge excluded a 

key medical expert witness without the required findings.  A different judge 

presided over the jury trial, subsequently granting a new trial on the ground that 
the exclusion order was a prejudicial error of law.1

       We hold that the trial judge was well within his discretion in granting the 

new trial.  CR 59 authorizes a new trial under these circumstances, the facts 

1 Misconduct of defense counsel was an alternative ground for new trial.  A different 
counsel represented defendant on appeal. 

No. 85342-8

amply supported the ruling, and a new trial was within the range of acceptable 

rulings.  We cannot emphasize too forcefully the importance of adequate findings 

to support more severe discovery sanctions such as exclusion of a witness.

                                         FACTS

       Ron Teter was diagnosed with a tumor in his right kidney.  Urologist Dr.

Andrew Deck, assisted by Dr. David Lauter, performed surgery to remove Teter's 

kidney.  During the surgery, Teter's abdominal aorta was lacerated and vascular 

surgeon Dr. Richard Towbin was called in to repair the aorta.  Immediately after 

surgery, Teter developed a condition in which increased pressure in one 

compartment of the body compromises the tissues in that compartment.  Even 

after a procedure to relieve the pressure, Teter continues to suffer from pain in his 

left leg that interferes with his ability to stand for long periods of time and with his 

ability to engage in his usual activities.

       Teter and his wife (the Teters) sued Drs. Deck and Lauter for negligence.  

The Teters eventually settled with Dr. Lauter and stipulated to his dismissal as a 

defendant.

    I. Discovery and Expert Witnesses

       The parties encountered difficulties in preparing for trial.  The trial was 

continued to March 17, 2008, on Dr. Lauter's motion, and again to September 22, 

2008 on a joint motion of all parties.  The parties agreed that they needed more 

time to complete discovery.  As a result of a pretrial conference in September 

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No. 85342-8

2008, the trial was continued again to January 12, 2009.  Neither the Teters nor 

Dr. Deck complied completely with discovery deadlines and the trial court granted 

motions to compel by both sides.

       The Teters initially retained Dr. William Duncan as their urologist-expert.  

They submitted a declaration from Dr. Duncan that detailed his opinions that (1) 

Dr. Deck breached the standard of care at several points during the course of the 

laparoscopic procedure; (2) Dr. Deck's breaches caused Teter's injuries;2 and (3) 

Dr. Deck failed to adequately inform Teter of the risks involved in performing a 

laparoscopic procedure, supporting a lack of informed consent claim against Dr. 

Deck.

       Dr. Deck deposed Dr. Duncan in January 2008.  In late January 2008, the 

Teters notified Dr. Deck that Dr. Duncan might not be available for the March 

2008 trial date, due to his impending back surgery.  However, the February 2008 

stipulated continuance obviated the need to replace Dr. Duncan.  In August, the 

Teters learned that Dr. Duncan had fallen and ruptured his spleen, making him 

unavailable for the scheduled September trial date.  Due to the imminence of the 

trial, the Teters requested the court's permission to replace Dr. Duncan.  The 

Teters timely disclosed their replacement urologist-expert, Dr. Robert Golden, on 

November 12, 2008.

       To the Teters' surprise, Dr. Golden withdrew shortly thereafter, based 

2 Dr. Duncan's declaration included similar opinions regarding Dr. Lauter.  However, Dr. 
Lauter was dismissed from the lawsuit after settling with the Teters.

                                             3 

No. 85342-8

solely on his discovery of a professional conflict, in the form of a long standing 

personal and professional relationship with one of Dr. Deck's partners, precluding 

his testimony as the Teters' expert.  Both the Teters and Dr. Golden himself

immediately informed Dr. Deck's counsel of Golden's withdrawal.            More than one 

month before the January 2009 trial date, the Teters notified Dr. Deck that they 

had retained Dr. Thomas Fairchild to replace Dr. Golden and that Dr. Fairchild 

would testify to the liability and causation issues previously identified.  The Teters 

offered several dates for Dr. Deck to take Dr. Fairchild's deposition.  Although Dr. 

Deck tentatively agreed to one of those dates, he later refused all of the proposed 

dates.  Instead, Dr. Deck moved to strike Dr. Fairchild on December 29, 2008.  

       On the first day of trial, Judge Christopher Washington granted the motion
to strike Dr. Fairchild as the Teters' expert witness.3  Before then, the case had 

been reassigned from Judge Washington to Judge Steven González.4

   II. The Trial and Counsel's Conduct

       Judge González made it clear that he expected a high level of formality 

and decorum during the course of the trial.  He laid out detailed instructions 

regarding objections, including speaking objections on the first day of trial:

3 On the same day, Judge Washington disposed of two more outstanding motions in 
the case: (1) he denied the Teters' motion to limit expert testimony and (2) he denied 
Dr. Deck's motion to exclude cumulative lay witnesses.  In both orders, Judge 
Washington indicated that the new trial court would make the decisions regarding 
admissibility and scope of witness testimony.

4 The same Judge González was appointed to the Washington Supreme Court after 
this case was argued and decided.  He took no part in the deliberations or decision in 
this case.

                                             4 

No. 85342-8

       You will say, objection, rule number, you will cite the rule, or you will 
       give the heading or title of the rule, but you won't make speaking 
       objections during trial.  If you need to supplement the record, I will 
       certainly give you the chance later to do so.  If you wish to make 
       additional argument, you could ask for that argument, but if I don't 
       invite it at that point, we won't hear any more argument at that time.

I Verbatim Report of Proceedings (RP) (Jan. 12, 2009) at 59.              The judge also 

clearly laid out his requirements that counsel must show opposing counsel 

anything to be shown to a witness or published to the jury, that exhibits must be 

marked before they could be used to refresh a witness's memory or used for 

illustrative purposes, and that counsel must ask permission before publishing 

anything to the jury.

       During trial, defense counsel Nancy Elliott continued to make speaking 

objections after reminders from the trial court of its prohibition.  Ms. Elliott also 

repeatedly attempted to put exhibits before the jury that had not been admitted

and to elicit testimony regarding subjects that the court had ruled inadmissible or 

irrelevant.  After one attempt, the trial court threatened to fine Ms. Elliott.  Finally, 

Ms. Elliott told both the court and opposing counsel that Dr. Deck intended to call 

two witnesses, Ms. Bonnie Ellison and Dr. Lauter.  However, Ms. Ellison had 

been told that she would not be needed, and Dr. Lauter's counsel disclaimed any 

attempt by Ms. Elliott to schedule Dr. Lauter's testimony.

       Eventually, Judge González made a record of his concerns (outside the 

jury's presence) regarding Ms. Elliott's conduct:

              Finally, I'd like to make a record about a few things, including 
       my displeasure with some of the conduct in this case.

                                             5 

No. 85342-8

              . . . There was late disclosure of discovery, including the CD 
       [(compact disk)], which I thought was the original CD, but turned out 
       to be an edited version, which was presented after 9:00 p.m. last 
       night to opposing counsel, and I just heard about it on the record in 
       trial.

              I'm also very concerned about the issues regarding disclosure 
       of witnesses and the timing of notifying opposing counsel and the 
       court, and the accuracy of the representations to the court about the 
       availability of witnesses and which witnesses would be called.

              . . . I'm concerned about the representation from Dr. Lauter's 
       counsel that counsel was unaware that Dr. Lauter was being 
       requested to testify.  That is different from the representation made 
       to the court by defense counsel that efforts were being made to 
       procure him.

              I'm also concerned about attempts to circumvent the court's 
       ruling on admissibility of documents.  It certainly appears that way by 
       putting issues before the jury regarding documents in a purported 
       attempt to lay foundation.

              For disregard for protocol and rules of evidence which are 
       repeated -- and this is not the first court in which they have 
       occurred -- for continued speaking objections after clear direction 
       from me not to do so, and what can only be described as feigned 
       ignorance when I say that a document must be marked before it's 
       shown to a witness, it certainly doesn't mean it has to be admitted 
       before a witness can refer to it to refresh recollection.  It is fairly 
       fundamental and basic how you refresh and when you can refresh a 
       witness's recollection.

X RP at 1903-04. After the trial court put these concerns on the record, Ms. Elliott 

made further attempts to elicit testimony on subjects previously ruled 

inadmissible.  

   III. New Trial

       After the jury returned a defense verdict, Judge González granted the 

                                             6 

No. 85342-8

Teters' motion for a new trial on two grounds: (1) that Judge Washington's order striking 

Dr. Fairchild was an error of law under CR 59(a)(8) and (2) that defense counsel's 

misconduct prevented a fair trial under CR 59(a)(1) and (a)(2).5         Judge González 

also  concluded    that the "cumulative effect of defense counsel's misconduct

throughout the trial proceedings warrants a new trial, as it casts doubt on whether 

a fair trial had occurred."  Clerk's Papers (CP) at 713.          The Court of Appeals 

reversed the trial court.  Teter v. Deck, noted at 158 Wn. App. 1015, 2010 WL 

4216151, at *1.

                                       ANALYSIS

       We review a trial court's grant of a new trial for abuse of discretion, unless 

that grant is based on an error of law.  Detrick v. Garretson Packing Co., 73 

Wn.2d 804, 812, 440 P.2d 834 (1988).  We require a much stronger showing of 

abuse of discretion to set aside an order granting a new trial than one denying a 

new trial.  Id.

   I.  Judge González Did Not Abuse His Discretion When He Granted a New 
       Trial Based on an Error of Law

       A trial court abuses its discretion if its decision is manifestly unreasonable

or based on untenable grounds or untenable reasons.  In re Marriage of Littlefield, 

133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).  Here, Judge González's decision 

to grant the Teters a new trial would be manifestly unreasonable if it was "outside 

5 Judge González rejected several additional grounds the Teters proposed in their 
motion for a new trial.

                                             7 

No. 85342-8

the range of acceptable choices, given the facts and the applicable legal standard."  

Id. at 47. CR 59 allows a trial judge to grant a new trial based on an error of law.6  

CR 59(a)(8).  Accordingly, Judge González's decision to grant the new trial on 

that basis was within the range of acceptable choices.7 However, because Judge 

González concluded that the exclusion of Dr. Fairchild was an error of law, we 

review that conclusion de novo.  See Detrick, 73 Wn.2d at 812. If that conclusion 

6 CR 59 also allows a trial judge to grant a party a new trial based on "any order of the 
court, or abuse of discretion, by which such party was prevented from having a fair 
trial."  CR 59(a)(1).  It is arguable that we would need to review for manifest abuse of 
discretion only Judge González's grant of a new trial on the basis that the exclusion 
order was an abuse of discretion that prevented the Teters from having a fair trial.  See
Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986) (appellate court may affirm 
trial court on any correct ground).  However, the Teters' request for a new trial based on 
the exclusion order was couched in terms of CR 59(a)(8) (error of law) as was Judge 
González's decision on the motion.  CP at 223, 710.

7 Dr. Deck argues that "[i]t was not within Judge González's purview after the verdict 
and entry of judgment to act as an appellate court and reverse Judge Washington's 
order as an abuse of discretion or reversible error."  Appellant's Br. at 39-38.   Dr. Deck 
misinterprets Judge González's action.  Judge González was authorized by CR 59 to 
grant the Teters' request for a new trial based on an error of law.  CR 59(a)(8).  The 
order for new trial was not an appellate decision.  While Judge González was required 
to evaluate Judge Washington's exclusion order, he did not "reverse" the order: he 
concluded that it was an error of law.  CP at 710.  Moreover, we have answered this 
argument before: 

       [T]he succession of judges cannot be considered by this court ; the office 
       is a continuing one ; the personality of the judge is of no legal importance. 
       The action of Judge Griffin was in legal effect a correction of his own 
       action, which he deemed to have been erroneous ; and it were far better 
       that he should correct it, than to perpetuate an error which would have to 
       be corrected by this court.

Shephard v. Gove, 26 Wash. 452, 454, 67 P. 256 (1901) (holding that it was not error 
for successor trial judge to direct a judgment for defendant based on the statute of 
limitations where initial judge had denied a motion for summary judgment on the same 
issue).

                                             8 

No. 85342-8

was correct, we would overturn the decision to grant a new trial only if we find that it 

was based on untenable grounds or untenable reasons.   See Littlefield, 133 

Wn.2d at 47.

       A.     The exclusion of Dr. Fairchild was an error of law

       Discovery sanctions are generally within the sound discretion of the trial 

court.  Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 

(1997).  However, the court may impose only the least severe sanction that will 

be adequate to serve its purpose in issuing a sanction.  Wash. State Physicians 

Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 355-56, 858 P.2d 1054 

(1993).  A trial court may impose only the most severe discovery sanctions upon 

a showing that (1) the discovery violation was willful or deliberate, (2) the violation 

substantially prejudiced the opponent's ability to prepare for trial, and (3) the court 

explicitly considered less severe sanctions.  Burnet, 131 Wn.2d at 494, 496-97.  

Discovery sanctions that trigger consideration of the Burnet              factors include 

exclusion of witness testimony.  Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 690, 

132 P.3d 115 (2006) (holding that while imposition of the most serious sanctions, 

such as witness exclusion, triggers         a  Burnet   analysis, imposition of lesser 

sanctions, like monetary compensation, does not).

       Findings regarding the Burnet factors must be made on the record.  Id.             A 

trial court may make the Burnet findings on the record orally or in writing.  See 

Blair v. TA-Seattle E. No. 176, 171 Wn.2d 342, 348-49, 254 P.3d 797 (2011)

                                             9 

No. 85342-8

(noting that the trial court did not make Burnet findings on the record where it did 

not engage in a colloquy with counsel or hear oral argument and did not include 

the findings in the written order).  Thus, where an order excluding a witness is 

entered without oral argument or a colloquy on the record, findings on the Burnet

factors must be made in the order itself or in some contemporaneous recorded 

finding.  Id. at 349 (rejecting the argument that "the record below speaks for itself"

and thus obviates the need for the trial court to explain its reasons on the record).

       In Blair, we addressed a situation very similar to this case.  Blair had not 

met certain discovery deadlines and TA-Seattle moved twice to strike witnesses 

as untimely disclosed.  Id. at 345-46.  The trial court granted both motions.  Id. at 

346, 347.  The trial court's first order struck half of Blair's witnesses; the second 

order struck two late-disclosed additions to her list.  Id.       The trial court did not 

enter findings supporting either order, nor did it engage in colloquy with counsel or 

hear oral argument.  The Court of Appeals affirmed the trial court's exclusion 

orders.  Id. at 347.  In doing so, the Court of Appeals agreed with TA-Seattle that 

the juxtaposition of the two orders indicated that the trial court had considered 

lesser sanctions.  Id. at 350.  We reversed, rejecting the premise "that an 

appellate court can consider the facts in the first instance as a substitute for the 

trial court findings that our precedent requires."  Id. at 351.

       The similarities between Blair and this case are striking.  The discovery 

process was quite contentious and the Teters admit that they missed several 

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No. 85342-8

discovery deadlines.  Teters'  Suppl. Br. at 3.  And Judge Washington's order 

excluding Dr. Fairchild did not contain the findings required by Burnet.  CP at 351-

54.  Although Judge Washington found that the Teters failed to comply with 

discovery orders and that Dr. Deck was prejudiced in his trial preparation, Judge 

Washington made no record other than the order: he held no colloquy with 

counsel and heard no oral argument on the motion.  Therefore, the requisite 

findings must be set forth in the order itself.  See Blair, 171 Wn.2d at 349.  

Because the order contains no finding (1) that the Teters discovery violations 

were willful or (2) that Judge Washington explicitly considered less severe 

sanctions, Judge González was correct when he concluded that the order does 
not comply with Burnet.8  See CP at 709-10.

       Dr. Deck argues, and the Court of Appeals agreed, that the record plainly 

reflects that Judge Washington considered each of the Burnet factors.  We reject 

Dr. Deck's and the Court of Appeals' attempts to read willfulness and lesser 

sanction findings into the order from a review of the record as a whole.

              1.      Willfulness

       The Court of Appeals noted that a party's violation of a court's order is 

deemed willful if it was without reasonable excuse or justification.  Teter, 2010 

WL 4216151, at *5 (citing Magaña v. Hyundai Motor Am., 167 Wn.2d 570, 584, 

8 It is also unclear whether the exclusion order's finding of prejudice satisfied the Burnet
requirements in that it finds only that Dr. Deck was "prejudiced" rather than substantially 
prejudiced.  See CP at 354.

                                            11 

No. 85342-8

220 P.3d 191 (2009)).  But in Magaña, the trial court made findings that Hyundai's 

discovery violations were willful; on appeal, we agreed with the Court of Appeals 

that the trial court's willfulness findings were reasonable because the record 

supported them.  167 Wn.2d at 585.  Magaña is therefore inapposite.

       Here,  the  Teters  explained  that Dr. Golden's sudden withdrawal was 

beyond their control because Dr. Golden himself was not aware of the basis for 

his conflict of interest when he agreed to be their expert witness.  In Magaña, the 

trial court explicitly discredited Hyundai's excuse based on facts in the record.  Id.

at 585-86.  Here, only Dr. Deck asserts that the Teters had "no reasonable 

excuse" for the late disclosure.  CP at 365.  This bare assertion cannot substitute 

for the trial court's rejection of the Teters' explanation.  Judge Washington made 

no reference to the Teters' explanation and did not explicitly reject it.  Therefore, 

the Court of Appeals' cursory reliance on Magaña conflicts with our holding in 

Blair.  Teter, 2010 WL 4216151, at *5; Blair, 171 Wn.2d at 351.

              2.      Lesser sanctions

       The Court of Appeals also agreed with Dr. Deck's argument that Judge 

Washington's consideration of lesser sanctions is "apparent from the record" 

because Judge Washington had already imposed lesser sanctions.  Resp't's 

Answer to Pet. for Review at 12; see Teter, 2010 WL 4216151 at *5.  Again, we 

rejected this argument in Blair, when we held that a prior order excluding only 

some of Blair's witnesses could not substitute for consideration of lesser 

                                            12 

No. 85342-8

sanctions on the record for the subsequent exclusion order. 171 Wn.2d at 350-51.  We 

continue to reject this argument here.  Mere issuance of lesser sanctions during the 

discovery process cannot substitute for on-the-record consideration of lesser sanctions 

when excluding a witness.9

       B.     A new trial is the appropriate remedy

       Since Judge González did not err in concluding that the exclusion of Dr. 

Fairchild was an error of law, his decision to grant a new trial on that basis would 

be an abuse of discretion only if it were based on untenable grounds or reasons.  

See Littlefield, 133 Wn.2d at 46-47.  A court's decision is based on untenable 

grounds if the factual findings are not supported by the record; the decision is 

based on untenable reasons if it is based on an incorrect standard.  Id. at 47.  CR 

59 allows a trial court to order a new trial based on an error of law where that 

error "materially affect[s] the substantial rights" of a party. CR 59(a), (a)(8).  Here, 

Judge González found that the exclusion of Dr. Fairchild "substantially and 

severely prejudiced" the Teters' right to a fair trial.  CP at 710.  Substantial and 

severe prejudice qualifies as a material effect; accordingly, Judge González's 

decision was based on the correct standard.

       Further, Judge González's findings of prejudice are supported by the 

9 Dr. Deck argues that Judge Washington considered lesser sanctions when he orally 
ordered the Teters at the November 12, 2009 pretrial conference to disclose their 
expert by the end that day or they would not be allowed to call a urologist expert.  There 
is no transcript of that pretrial conference in the record and no record that Judge 
Washington considered lesser sanctions at that time.

                                            13 

No. 85342-8

record.  First, the record shows that the Teters were forced to abandon their claim 

of lack of informed consent against Dr. Deck because Dr. Fairchild was their only 

expert who could give evidence on that claim.  I RP at 30.   Second, the record 

shows that Dr. Fairchild was the Teters' only medical expert who was a urologist.  

His exclusion opened the door to the defense argument that the Teters could not 

prove their case against Dr. Deck, a urologist, because they did not produce a 

urologist expert,  a door that defense counsel stepped through repeatedly in 

closing.  XII RP (Jan.30, 2009) at 2222-24, 2236, 2240.  Thus, Judge González's 

decision to grant the Teters a new trial was not an abuse of discretion.

       Dr. Deck argues that even if Judge Washington's order contained technical 

errors, the correct remedy is a remand to Judge Washington to make the Burnet

findings.1   We rejected a similar argument in Blair.  171 Wn.2d at 352 n.6 

(allowing the trial court to make after-the-fact findings to support its exclusion 

orders "would be inappropriate").  Admittedly, we have remanded cases to the 

trial court for Burnet findings.  Rivers v. Wash. State Conf. of Mason Contractors, 

145 Wn.2d 674, 700, 41 P.3d 1175 (2002).  However, the action under review in 

Rivers was a dismissal with prejudice rather than the grant of a new trial after a 

judgment on the merits; we remanded for a new determination of whether the 

1 Dr. Deck notes, in particular, that the Teters failed to move for reconsideration of the 
exclusion order.  Although the Teters initially planned to move for reconsideration, they 
ultimately chose to make two offers of proof on the record.  Judge González indicated 
that he understood the purpose of the proffer and did not require a motion to 
reconsider.  Judge González also allowed defense counsel to respond to the second 
proffer.

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No. 85342-8

complaint should be dismissed, with specific Burnet findings on the record.  See id.,

at 683, 700.   Where a case has been decided on the merits, either by jury trial or 

on summary judgment, we have remanded for a new trial.  Blair, 171 Wn.2d at 

352; Burnet, 131 Wn.2d at 498-99.

       This case is more like Burnet -- in both Burnet and here the sanction order 

forced plaintiffs to abandon one of their claims.  In  Burnet,  plaintiffs            were 

precluded from bringing negligent credentialing claims by an order limiting 

discovery on the issue, 131 Wn.2d at 490-91, while here the Teters were forced 

to abandon an  informed consent claim due to exclusion of Dr. Fairchild.  

Moreover, the Burnet majority rejected the argument that the Burnets had waived 

the issue on appeal by failing to move for reconsideration.  Here, the Teters 

placed the issue before Judge González by making their offers of proof, and 

Judge González made it clear that he had accepted the case only because it was 

"ready to go."  I RP at 9.  Nonetheless, he allowed the Teters to make their 

proffers on the record.  ER 103 provides that an offer of proof is sufficient to 

preserve an issue for appeal.  ER 103(a)(2).  In addition, the Teters could not ask 

Judge Washington to reconsider since he had already been replaced as the trial 

judge when he signed the exclusion order.  We decline Dr. Deck's invitation to 

"allow the trial court to make after-the-fact findings" to support the exclusion order.  

Blair, 171 Wn.2d at 352 n.6.  An order for new trial was the appropriate remedy.

   II. Judge González Did Not Abuse His Discretion By Granting a New Trial 
       Based on Defense Counsel's Misconduct

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No. 85342-8

       We review a trial court's order granting a new trial solely for abuse of 

discretion when it is not based on an error of law.  Detrick, 73 Wn.2d at 812.  And 

we require a much stronger showing of abuse of discretion to set aside an order 

granting a new trial than one denying a new trial.  Id.  A trial court abuses its 

discretion if its decision is manifestly unreasonable or based on untenable 

grounds or untenable reasons.  Littlefield, 133 Wn.2d at 46-47.  A trial court's 

decision is manifestly unreasonable if it is outside the range of acceptable

choices.  Id.   Under CR 59(a)(2), a trial court may grant a new trial where 

misconduct of the prevailing party materially affects the substantial rights of the 

losing party.  Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 

539, 998 P.2d 856 (2000) (Alcoa).  Accordingly, Judge González's decision to 

grant a new trial on this basis was also within the range of acceptable choices and 

we will overturn that decision only if we find that it was not supported in the record 

or was made under an incorrect standard.  See Littlefield, 133 Wn.2d at 47.

       The Court of Appeals, however, appears                to have reviewed Judge 

González's ruling as an issue of law.  Without identifying the standard of review, 

the Court of Appeals held that Judge González's findings were too general and 

nonspecific to support his conclusion that defense counsel's misconduct deprived 

the Teters of a fair trial.  Teter, 2010 WL 4216151, at *5.  The Court of Appeals 

went on to hold that the instances of misconduct identified by the Teters in their 

briefing did not "appear[] so out of the ordinary or so irregular or flagrant as to 

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No. 85342-8

deprive the Teters of a fair trial."  Id.    In reaching this conclusion, the Court of 

Appeals appears to have substituted its own judgment for that of the trial court.  

See State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991) ("The trial court is 

in the best position to most effectively determine if [counsel's] misconduct 

prejudiced a [party's] right to a fair trial."), cert. denied, 506 U.S. 856 (1992).

       The Rules of Evidence impose a duty on counsel to keep inadmissible 

evidence from the jury.  ER 103(c).  Persistently asking knowingly objectionable 

questions is misconduct.  14A Karl           B.  Tegland,  Washington Practice: Civil 

Practice § 30:33 (2d ed. 2009).  Even where objections are sustained, the 

misconduct is prejudicial because it places opposing counsel in the position of 

having to make constant objections.  Id.   These repeated objections, even if 

sustained, leave the jury with the impression that the objecting party is hiding 

something important.  Misconduct that continues after warnings can give rise to a 

conclusive implication of prejudice.  Id. § 30:41.

       Applying the deferential review appropriate to misconduct findings in civil 

cases, see Alcoa, 140 Wn.2d at 539, we conclude that the record supports Judge 

González's findings of misconduct.

       First, the trial record reveals that defense counsel repeatedly violated the 

evidence rules by attempting to put exhibits before the jury that had not been 

admitted and to elicit testimony regarding subjects that the court had ruled 

inadmissible or irrelevant.  For example, defense counsel moved repeatedly for 

                                            17 

No. 85342-8

admission of Teter's entire hospital record as defense exhibit 1002.11                The Teters 

objected because the exhibit included documents not relevant to their claims, 

hearsay, and documents that violated the court's rulings on plaintiff's motions in 

limine.  See X RP at 1787.  Nonetheless, defense counsel continued to move 

admission of the exhibit in its entirety because Dr. Deck's experts had relied on it 

in forming their opinions.       Judge González eventually admonished defense 

counsel, "As counsel well knows, and as I mentioned already in this trial, an 

expert may rely upon documents.  That does not make them admissible as 

substantive evidence themselves."  X RP at 1788.

       Additional misconduct included violation of the following rulings: order 

granting plaintiff's motion in limine regarding evidence that Teter failed to mitigate 

his damages; order limiting the evidence regarding Dr. Lauter's role in the 
surgery; and Judge González's prohibition on speaking objections.12 Examples of 

improper speaking objections include:

       Ms. Elliott:  Your honor, object to this based upon the depositions 
       and the subpoenas and the outstanding discovery request.

       The Court:  The jury will disregard the speaking objection.  The 
       objection is overruled.

III RP at 310 (from the first day of testimony).

       Mr. Lipman [plaintiff's counsel]:  Objection, relevance.

11 Several individual pages of exhibit 1002 were admitted for illustrative purposes; other 
documents in the exhibit had been admitted individually as plaintiff's exhibits.

12 Speaking objections can be another method of exposing the jury to inadmissible 
evidence and inappropriate argument.

                                            18 

No. 85342-8

       Ms. Elliott:  They have a claim for  -- 

       The Court:  You know what?  If I'm not asking for argument, I don't 
       want to hear it from either counsel.  The objection is overruled.

Id. at 325.

       Mr. Menzer:  Same objection.

       The Court:  Sustained.

       Ms. Elliott:  Your honor, experience is in question here.  I believe that 
       it's relevant.

       The Court:  I believe that I've spoken already about my opinion of 
       speaking objections, and I won't tolerate more.

VI RP at 961.

       Ms. Elliott:  Your honor, object to this, since their expert said that this 
       complication was not negligence.

       The Court:  No speaking objections.

IX RP at 1572-73.

       These examples show that Judge González  was sufficiently troubled to 

make a record of his concerns about defense counsel's conduct.  Finally, the 

repeated instances of misconduct after warnings by the court support Judge 

González's finding that the cumulative effect of the misconduct warranted a new 
trial.13  See CP at 713.   Therefore, Judge González's findings of misconduct and 

prejudice are supported by the record.       Moreover, he made these findings under 

the appropriate standard       because    misconduct     that  "unfairly and improperly 

13 The prejudice finding is also supported by the fact that one member of the jury felt it 
necessary to inform Judge González's clerk that the juror felt "like strangling a couple of 
lawyers."  XI RP at 1917.

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No. 85342-8

exposed the jury to inadmissible evidence[ and] prejudiced [the Teters]" qualifies as a 

material effect on the Teters' substantial right to a fair trial.  CP at 712-13; CR 

59(a).  Accordingly, Judge González did not abuse his discretion in granting a 

new trial.

       The Court of Appeals held that the Teters had waived their claim to a new 

trial based on defense counsel's misconduct because they did not move for a 

mistrial.  Teter, 2010 WL 4216151, at *6.        The Court of Appeals cited Nelson v. 

Martinson, 52 Wn.2d 684, 689, 328 P.2d 703 (1958), for the premise that a party 

may not "wait and gamble on a favorable verdict" before claiming error.  While the 

basic premise is correct, the Court of Appeals ignores the exception for 

misconduct so flagrant that no instruction can cure it.  Warren v. Hart, 71 Wn.2d 

512, 518, 429 P.2d 873 (1967) (addressing a party's reliance on Nelson, 52 

Wn.2d 684).  Equally important, Nelson is also inapposite because there  the 

respondents made no objection when the misconduct occurred.  52 Wn.2d at 

689.  Conversely, the Teters consistently objected to inappropriate lines of 

questioning and attempts to put exhibits that had not been admitted before the 

jury.  In fact, the trial court sustained one of the Teters' objections when defense 

counsel relied on such testimony during closing argument.

       Moreover, we more recently articulated a different standard in Alcoa:  a 

court properly grants a new trial where (1) the conduct complained of is 

misconduct, (2) the misconduct is prejudicial, (3) the moving party objected to the 

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No. 85342-8

misconduct at trial,    and   (4)  the misconduct was not         cured by the court's 

instructions.  140 Wn.2d at 539.  Here, the first two criteria are met by Judge 

González's findings of misconduct and prejudice.  In addition, the Teters objected 

regularly and requested curative instructions. This meets the standard set forth in 

Alcoa.  It would be onerous to require a party to also move for mistrial to preserve 

a claim for error based on misconduct.  We reverse the Court of Appeals holding 

to that effect.

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No. 85342-8

                                     CONCLUSION

       We have quite clearly held that explicit findings regarding the Burnet

factors must be made on the record when a court imposes the most severe 

discovery sanctions, like excluding a witness.  In this case, neither the record nor 

the order excluding Dr. Fairchild contains explicit findings on the Burnet factors.  

We also hold that the trial court did not abuse its discretion in granting a new trial 

based on defense counsel's misconduct because the trial court's findings of 

misconduct are adequately supported by the record, and we will not substitute our

own judgment for the trial court's judgment in evaluating the scope and effect of 

that misconduct.     Accordingly, we reverse the Court of Appeals, reinstate the 

order for a new trial, and remand for proceedings consistent with this opinion.

                                            22 

No. 85342-8

AUTHOR:
        Justice Charles K. Wiggins

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Gerry L. Alexander, Justice Pro Tem.

        Justice Susan Owens

        Justice Mary E. Fairhurst

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